The West, under the leadership of the US, EU and NATO, claims to be defending a rules-based international order by way of its support for Ukraine, including its call for full accountability. Regrettably, however, this claim fails to fully convince given the inconsistencies in the West’s approach to international (criminal) law. I will develop this counterclaim in three steps: first, I will argue that the Western approach to the Russian aggression is by no means universally accepted, especially not in the Global South (Part 2). Secondly, I will try to explain, at least partly, the reason for this limited support by pointing out both historical and more recent Western inconsistencies with regard to international law (Part 3). On this basis I will then, by way of conclusion, call for (greater) Western consistency in international law, while formulating some caveats at the same time (Part 4).
{"title":"Ukraine and the Double Standards of the West","authors":"Kai Ambos","doi":"10.1093/jicj/mqac041","DOIUrl":"https://doi.org/10.1093/jicj/mqac041","url":null,"abstract":"The West, under the leadership of the US, EU and NATO, claims to be defending a rules-based international order by way of its support for Ukraine, including its call for full accountability. Regrettably, however, this claim fails to fully convince given the inconsistencies in the West’s approach to international (criminal) law. I will develop this counterclaim in three steps: first, I will argue that the Western approach to the Russian aggression is by no means universally accepted, especially not in the Global South (Part 2). Secondly, I will try to explain, at least partly, the reason for this limited support by pointing out both historical and more recent Western inconsistencies with regard to international law (Part 3). On this basis I will then, by way of conclusion, call for (greater) Western consistency in international law, while formulating some caveats at the same time (Part 4).","PeriodicalId":46732,"journal":{"name":"Journal of International Criminal Justice","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2022-11-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138536027","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In this article I argue that Russia’s use of memory laws has facilitated the armed conflict in Ukraine, bolstering the rhetorical justification for Russia’s latest aggression. The use of memory laws is hardly new for various legal systems around the world. Most of the early European memory laws have focused on the protection of victim groups from harmful ideologies, however the last two decades have seen a shift away from victim-centric to state-centric laws, especially in Eastern Europe. These laws protect the state’s honour and reputation and have serious ramifications domestically, in terms of human rights violations, but also in international relations. I argue that due to the relationship between identity-building and collective memory, the use of the most nefarious types of memory laws that exculpate the state from earlier crimes has enabled Russia to amplify its propaganda around Ukraine’s so-called ‘denazification’, justifying its aggression against Ukraine. The case study constitutes an example of the many reasons why memory laws should be used sparingly.
{"title":"Legislating Propaganda","authors":"Ilya Nuzov","doi":"10.1093/jicj/mqac052","DOIUrl":"https://doi.org/10.1093/jicj/mqac052","url":null,"abstract":"\u0000 In this article I argue that Russia’s use of memory laws has facilitated the armed conflict in Ukraine, bolstering the rhetorical justification for Russia’s latest aggression. The use of memory laws is hardly new for various legal systems around the world. Most of the early European memory laws have focused on the protection of victim groups from harmful ideologies, however the last two decades have seen a shift away from victim-centric to state-centric laws, especially in Eastern Europe. These laws protect the state’s honour and reputation and have serious ramifications domestically, in terms of human rights violations, but also in international relations. I argue that due to the relationship between identity-building and collective memory, the use of the most nefarious types of memory laws that exculpate the state from earlier crimes has enabled Russia to amplify its propaganda around Ukraine’s so-called ‘denazification’, justifying its aggression against Ukraine. The case study constitutes an example of the many reasons why memory laws should be used sparingly.","PeriodicalId":46732,"journal":{"name":"Journal of International Criminal Justice","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2022-11-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47878362","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Allegations of genocide have been made on both sides during the armed conflict in Ukraine. This article reviews the claims, concluding that they appear to be inconsistent with the crime of genocide as defined in Article II of the 1948 Convention, as interpreted by the International Court of Justice, the ad hoc tribunals and the International Law Commission. Most of the claims appear to use the term genocide in a rhetorical sense, without serious concern for the legal issues. The available evidence does not permit inferences to be drawn that the punishable acts are committed with genocidal intent, to the exclusion of other reasonable explanations.
{"title":"Genocide and Ukraine: Do Words Mean What We Choose them to Mean?","authors":"William A Schabas","doi":"10.1093/jicj/mqac042","DOIUrl":"https://doi.org/10.1093/jicj/mqac042","url":null,"abstract":"Allegations of genocide have been made on both sides during the armed conflict in Ukraine. This article reviews the claims, concluding that they appear to be inconsistent with the crime of genocide as defined in Article II of the 1948 Convention, as interpreted by the International Court of Justice, the ad hoc tribunals and the International Law Commission. Most of the claims appear to use the term genocide in a rhetorical sense, without serious concern for the legal issues. The available evidence does not permit inferences to be drawn that the punishable acts are committed with genocidal intent, to the exclusion of other reasonable explanations.","PeriodicalId":46732,"journal":{"name":"Journal of International Criminal Justice","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2022-10-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138536026","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In this article, the author questions some assertions on issues of international and Congolese criminal law made in the context of an article published in a Special Issue of the Journal on ‘Justice and Accountability for Sexual Violence in Conflict: Progress and Challenges in National Efforts to Address Impunity’. While he credits the article with helping to bring to the attention of a wider audience the atrocities experienced by the victims of the Kavumu case — and thus contributing to the overall justice-effort on their behalf — he notes a few areas of legal concern, including: (i) the impact of Article 27(2) ICC Statute on parliamentary immunities in prosecuting crimes under the Rome Statute before national courts; (ii) the determination of liability of the accused when military judges have failed to identify direct perpetrators of crimes or the group to which they belong; and (iii) the relationship between the forms of criminal responsibility of individuals that make up the leadership of an organization and the policy element of crimes against humanity attributed to that organization. In sum, the article seeks to investigate to what extent the judicial reasoning in this case may have contributed to clarifying the provisions of the ICC Statute as applied by military judges in Congolese courts.
{"title":"Achieving Justice for Child Survivors of Conflict-related Sexual Violence in the Democratic Republic of the Congo in Light of the Kavumu Case","authors":"Jacques B Mbokani","doi":"10.1093/jicj/mqac038","DOIUrl":"https://doi.org/10.1093/jicj/mqac038","url":null,"abstract":"\u0000 In this article, the author questions some assertions on issues of international and Congolese criminal law made in the context of an article published in a Special Issue of the Journal on ‘Justice and Accountability for Sexual Violence in Conflict: Progress and Challenges in National Efforts to Address Impunity’. While he credits the article with helping to bring to the attention of a wider audience the atrocities experienced by the victims of the Kavumu case — and thus contributing to the overall justice-effort on their behalf — he notes a few areas of legal concern, including: (i) the impact of Article 27(2) ICC Statute on parliamentary immunities in prosecuting crimes under the Rome Statute before national courts; (ii) the determination of liability of the accused when military judges have failed to identify direct perpetrators of crimes or the group to which they belong; and (iii) the relationship between the forms of criminal responsibility of individuals that make up the leadership of an organization and the policy element of crimes against humanity attributed to that organization. In sum, the article seeks to investigate to what extent the judicial reasoning in this case may have contributed to clarifying the provisions of the ICC Statute as applied by military judges in Congolese courts.","PeriodicalId":46732,"journal":{"name":"Journal of International Criminal Justice","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2022-09-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45657934","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The introductory section examines the similarities between the prosecution dilemmas posed by the successive piracy crises off the coasts of Somalia and the Gulf of Guinea. Section 1 analyses how the prosecution-related shortcomings of universal jurisdiction and of the international treaty regime currently applicable to the crime of piracy have been compounded by domestic legal and structural factors affecting littoral states in the east and west Africa coasts. Section 2 follows by examining the role of crises as tipping points for international adjudication and introducing central concepts of the analytical tradition of ‘historical institutionalism’ such as ‘critical juncture’ or ‘path-dependence’. Section 3 then applies these analytical tools as it reviews the pros and cons of the main international, hybrid and nationally assisted adjudicative alternatives for the prosecution of the crime of piracy, which it divides into the categories of ‘ad hoc’ and ‘permanent’ solutions, and examines their potential applicability to the escalating piracy crisis in the Gulf of Guinea. The conclusion recaps the main findings of the article and highlights how the elusive quest for international adjudication of the crime of piracy in Africa illustrates the veiled, yet pervasive, influence of path-dependence on international adjudicative-setting processes.
{"title":"The Paths Not Taken?","authors":"Ignacio de la Rasilla","doi":"10.1093/jicj/mqac036","DOIUrl":"https://doi.org/10.1093/jicj/mqac036","url":null,"abstract":"\u0000 The introductory section examines the similarities between the prosecution dilemmas posed by the successive piracy crises off the coasts of Somalia and the Gulf of Guinea. Section 1 analyses how the prosecution-related shortcomings of universal jurisdiction and of the international treaty regime currently applicable to the crime of piracy have been compounded by domestic legal and structural factors affecting littoral states in the east and west Africa coasts. Section 2 follows by examining the role of crises as tipping points for international adjudication and introducing central concepts of the analytical tradition of ‘historical institutionalism’ such as ‘critical juncture’ or ‘path-dependence’. Section 3 then applies these analytical tools as it reviews the pros and cons of the main international, hybrid and nationally assisted adjudicative alternatives for the prosecution of the crime of piracy, which it divides into the categories of ‘ad hoc’ and ‘permanent’ solutions, and examines their potential applicability to the escalating piracy crisis in the Gulf of Guinea. The conclusion recaps the main findings of the article and highlights how the elusive quest for international adjudication of the crime of piracy in Africa illustrates the veiled, yet pervasive, influence of path-dependence on international adjudicative-setting processes.","PeriodicalId":46732,"journal":{"name":"Journal of International Criminal Justice","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2022-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48736950","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Correction to the Article: The UN Security Council Faces Organized Crime: Fact-finding, Regulation and Enforcement Strategies","authors":"","doi":"10.1093/jicj/mqac054","DOIUrl":"https://doi.org/10.1093/jicj/mqac054","url":null,"abstract":"","PeriodicalId":46732,"journal":{"name":"Journal of International Criminal Justice","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2022-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41243566","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Followers of the International Criminal Court (ICC) interested in theories of liability were looking forward to the Appeals Chamber judgment in the Ntaganda case, in which Bosco Ntaganda was convicted of war crimes and crimes against humanity in the Democratic Republic of the Congo (DRC). The conviction was based on the theory of indirect co-perpetration through an Organized Structure of Power (OSP). This theory resulted from a specific interpretation of the ICC Statute, based on German legal scholarship. The theory has been criticized for its breadth and lack of legal basis. It has also been embraced as the theory of liability that best captures the liability of those who mastermind crimes. When the judgment was delivered on 30 March 2021, the appellate bench was divided, which arguably leaves the theory still contested. This symposium discusses indirect co-perpetration from perspectives hitherto not discussed. Two articles look at how the German theory of Tatherschaft that lies at the basis of indirect co-perpetration, has been absorbed in some domestic legal systems (Japan and Columbia). One article discusses the multi-layered concept of control that is at the heart of the theory. In another piece, adopting a law and sociology approach, authors explore the creative processes that produced indirect co-perpetration. Lastly, one author discusses the viability of an alternative to indirect co-perpetration: instigation.
{"title":"Foreword","authors":"Elies van Sliedregt, B. Weisser","doi":"10.1093/jicj/mqac033","DOIUrl":"https://doi.org/10.1093/jicj/mqac033","url":null,"abstract":"\u0000 Followers of the International Criminal Court (ICC) interested in theories of liability were looking forward to the Appeals Chamber judgment in the Ntaganda case, in which Bosco Ntaganda was convicted of war crimes and crimes against humanity in the Democratic Republic of the Congo (DRC). The conviction was based on the theory of indirect co-perpetration through an Organized Structure of Power (OSP). This theory resulted from a specific interpretation of the ICC Statute, based on German legal scholarship. The theory has been criticized for its breadth and lack of legal basis. It has also been embraced as the theory of liability that best captures the liability of those who mastermind crimes. When the judgment was delivered on 30 March 2021, the appellate bench was divided, which arguably leaves the theory still contested. This symposium discusses indirect co-perpetration from perspectives hitherto not discussed. Two articles look at how the German theory of Tatherschaft that lies at the basis of indirect co-perpetration, has been absorbed in some domestic legal systems (Japan and Columbia). One article discusses the multi-layered concept of control that is at the heart of the theory. In another piece, adopting a law and sociology approach, authors explore the creative processes that produced indirect co-perpetration. Lastly, one author discusses the viability of an alternative to indirect co-perpetration: instigation.","PeriodicalId":46732,"journal":{"name":"Journal of International Criminal Justice","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2022-08-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43762590","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article deals with the question of the attribution of criminal responsibility to leaders of large criminal organizations for crimes which were committed by their subordinates in compliance with their orders. It presents a critical assessment of Roxin’s theory of indirect perpetration through an organized apparatus of power, as well as of the International Criminal Court’s theory of indirect co-perpetration through an organized structure of power. Both theories have serious shortcomings and, in addition, fail to conceptually capture the greater responsibility of the leaders of the organization vis-à-vis the executors. Thus, this article presents an outline of a typological system of the influence over the crime, which constitutes an alternative system of criminal participation and offers a better solution to the problem of criminal responsibility of the members of an organized apparatus of power.
{"title":"Reflections on Indirect (Co-)Perpetration through an Organization","authors":"Hernán Darío Orozco López, Natalia Silva Santaularia","doi":"10.1093/jicj/mqac034","DOIUrl":"https://doi.org/10.1093/jicj/mqac034","url":null,"abstract":"\u0000 This article deals with the question of the attribution of criminal responsibility to leaders of large criminal organizations for crimes which were committed by their subordinates in compliance with their orders. It presents a critical assessment of Roxin’s theory of indirect perpetration through an organized apparatus of power, as well as of the International Criminal Court’s theory of indirect co-perpetration through an organized structure of power. Both theories have serious shortcomings and, in addition, fail to conceptually capture the greater responsibility of the leaders of the organization vis-à-vis the executors. Thus, this article presents an outline of a typological system of the influence over the crime, which constitutes an alternative system of criminal participation and offers a better solution to the problem of criminal responsibility of the members of an organized apparatus of power.","PeriodicalId":46732,"journal":{"name":"Journal of International Criminal Justice","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2022-08-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45818879","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article investigates the International Criminal Court (ICC) as a law laboratory. Inspired by perspectives from the sociology of law, the article analyses how professional agents battled for control over the general direction and specific legal terminology of the Court, especially in its early life. Working also to distance the Court from what was perceived as excessive judicial creativity of the ad hoc international criminal tribunals for the former Yugoslavia and Rwanda, these agents created the conditions for a distinct laboratory of law in which new legal concepts and doctrines could be created. The article analyses in particular one new doctrine, the control theory based on Article 25(3) of the ICC Statute, as emblematic of battles to define the direction of the ICC as a law laboratory.
{"title":"The International Criminal Court as a Law Laboratory","authors":"M. Christensen, Nabil M. Orina","doi":"10.1093/jicj/mqac035","DOIUrl":"https://doi.org/10.1093/jicj/mqac035","url":null,"abstract":"\u0000 This article investigates the International Criminal Court (ICC) as a law laboratory. Inspired by perspectives from the sociology of law, the article analyses how professional agents battled for control over the general direction and specific legal terminology of the Court, especially in its early life. Working also to distance the Court from what was perceived as excessive judicial creativity of the ad hoc international criminal tribunals for the former Yugoslavia and Rwanda, these agents created the conditions for a distinct laboratory of law in which new legal concepts and doctrines could be created. The article analyses in particular one new doctrine, the control theory based on Article 25(3) of the ICC Statute, as emblematic of battles to define the direction of the ICC as a law laboratory.","PeriodicalId":46732,"journal":{"name":"Journal of International Criminal Justice","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2022-08-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44684691","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Ginevra Le Moli, Human Dignity in International Law","authors":"W. Timmermann","doi":"10.1093/jicj/mqac032","DOIUrl":"https://doi.org/10.1093/jicj/mqac032","url":null,"abstract":"","PeriodicalId":46732,"journal":{"name":"Journal of International Criminal Justice","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2022-08-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48215419","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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